An inconvenient reflection on human rights: Comments on Choi-Fitzpatrick’s article, “Disruption and Emergence”

Abstract

In response to Austin Choi-Fitzpatrick’s essay on the impending critical juncture for human rights, this essay contends that we are already experiencing this transformative moment. It critiques the current state of human rights scholarship for its shortsighted focus on present abuses, neglecting future challenges. The essay reframes his characterization of existential threats in terms of democratic backsliding, nonhuman rights, and emerging technologies, driven by unmet human rights promises, environmental harms, and technological advancements. It argues for a broader, pluralistic, and anti-anthropocentric approach to rights, encompassing humans and nonhumans alike. The essay challenges traditional human rights theory’s neglect of foundational questions about rights bearers, advocating for an inclusive, system-oriented perspective that decouples human supremacy from moral consideration. It calls for radically rethinking human rights scholarship to ensure its relevance and effectiveness in addressing 21st-century challenges.

Austin Choi-Fitzpatrick (2023) is correct that humanity may be hurling toward a critical juncture that upends the status quo of human rights. I would go a step further and argue that we are already in the midst of such a moment. Unfortunately, for all the ink that has been spilt on the topic of human rights, scholars in this area have occasionally been asleep at the wheel, unconsciously passing through novel territory en route to an uncharted destination.

Such short-sightedness is due, at least in part, to the urgency of addressing current human rights abuses. But, as Choi-Fitzpatrick brilliantly points out, this laser-like focus on the present has come at the expense of anticipating challenges that lie on the road ahead. This error must be rectified if the human rights project is to survive beyond the immediate horizon. To this end, human rights must face itself in the mirror and confront some difficult truths about its appearance. In this brief response, I embark on such a reflection by elaborating on Choi-Fitzpatrick’s pathbreaking, agenda-setting piece. I highlight some of the drivers, questions, and key issues relevant to modern human rights, and close by offering some recommendations intended to help recalibrate human rights in light of an uncertain dawn.

To begin, I depart slightly from the original article in terms of characterizing the developments that pose a challenge to modern human rights. Whereas Choi-Fitzpatrick identifies innovations in science and technology, climate change and energy transformation, and shifts in the geopolitical order, I call attention to democratic backsliding/expanding authoritarianism, the rise of nonhuman rights, and emerging technologies. I argue that these existential crises have arisen due to three primary drivers: the failure of human rights to deliver on its promises or resolve conflicts, the range of environmental harms caused by human activity, and the emergence of technological advances that increasingly blur the lines between the biotic and the synthetic.

The first of these causal forces has been amply discussed by the human rights community. Indeed, authors writing in the pages of this journal have expressly recognized that, in the presence of democratic backsliding and expanding authoritarianism, the vision of international human rights law remains yet to be realized (Hepner & Smith-Cannoy, 2022). However, on the other two existential dilemmas, the academic human rights world has been shockingly mum. As evidence of this oversight, consider that a search of articles in this journal featuring the keywords “animals,” “nature,” or “artificial intelligence” returned zero publications. A single article made mention of animals rights in the title (MacDonald, 2006). These results are surprising because of the many developments surrounding nonhumans that have occurred since the early 2000s, which include rights of nature laws promulgated in jurisdictions around the world (Kauffman & Martin, 2021), court decisions recognizing the rights of animals (Hall, 2023), and even laws in the United States extending legal rights to delivery robots (Gunkel, 2023). These developments have transpired in parallel to debates in academic and popular discourses about how emerging technologies affect human rights, call into question who is deserving of rights, and challenge our idea of what it means to be human.

Perhaps at this point the reader will accuse me of relying on a strawman argument. That is, of course human rights need not concern itself with animals, nature, or (heaven forbid!) robots. After all, they are human rights. What this objection misses is that the entire human rights project rests on foundations that are being shaken to their core in light of the existential crises described above. The center cannot hold if these issues are not adequately addressed, even if they are to be discarded as unimportant. However, students of human rights will have to make compelling cases as to why we should cast aside developments that frustrate the maintenance of status quo theorizing in order to mount a successful critique. Assertions that human rights are, prima facie, more important than the rights of nonhumans, for instance, will need to be vigorously defended on moral, not just intuitively logical, grounds. Even some long-standing human rights champions have dismissed this hierarchical line of thinking as facile and insufficiently attentive to the complex ethical nature of contemporary problems (Schulz & Raman, 2020). All of this is to say that I encourage readers who have found themselves thus far cynical of the argument unfolding here to at least temporarily suspend their fidelity to doctrinaire human rights theorizing in the spirit of permitting this reflection to fully mature before rendering judgment on its validity.

In the course of concentrating efforts on thoroughly analyzing and prescribing solutions to immediate human rights concerns, experts at the vanguard of mainstream human rights scholarship have lost sight of fundamental questions that define the field of study. These include, but are not limited to, the following: To what extent can rights accommodate pluralism and complexity? Are rights the “right” tool to use? Whose ideas about rights matter? Who is a subject of rights?

Allow me to dwell for a moment on the last of these inquiries. It is an unfortunate relic of human rights theory that the question of subjecthood has proceeded as if it has been definitively resolved while literature on AI ethics (Wojtczak, 2022), animal rights (Coeckelbergh & Gunkel, 2014), environmental law (Boulot & Sterlin, 2021), and political theory (Celermajer et al., 2023) has continued to probe its boundaries. Choi-Fitzpatrick is right to characterize this thread not as one singular “ontological turn” but, rather, as a web of turns scattered across numerous disciplines. Yet, the omnipresence of such intellectual effort makes its relatively scarce presence in human rights literature all the more perplexing.

At the same time, this case of curious neglect is easily traceable enough. Hannah Arendt’s canonical book, The Origins of Totalitarianism, made famous the notion of a “right to have rights” (Arendt, 1973, p. 296). Her text, written in the wake of two World Wars that exposed the precariousness of certain groups of people, necessarily emphasized the human experience during and after conflict. But in spite of the fact that major advances in the legal and moral status of animals and nature began to enter academic discourse in the latter half of the twentieth century (Singer, 1974; Stone, 1972), human rights theory seemed content to remain frozen in time. Those writing about rights from an Arendtian perspective appeared perfectly resigned to restrict their ontological lens to the human species, begging the question they had no interest in answering. Students of Arendt would author whole books on the rights of others, by which they meant aliens, refugees, and stateless humans (Benhabib, 2004); wax philosophical about “the activity of rights bearers themselves” (Ingram, 2008, p. 414) without deeming it necessary to interrogate who the rights bearers are; and clarify that the right to have rights is dependent on “our capacity as democratic beings, that is, as beings having to assume responsibility for the absence of a higher law in politics” (Näsström, 2014, p. 562). Never mind the fact that not every entity potentially worthy of moral consideration will enjoy some form of democratic representation.

Kesby came close to admitting a wider scope of rights bearers when she played Arendt off of Rancière’s critique in her appropriately titled 2012 book, The Right to Have Rights. In fact, she went as far as to celebrate Rancière’s contribution, the force of which resides in recognizing that there is “no permanent subject of rights. Rights can be taken up by a limitless spectrum of subjects” (Kesby, 2012, p. 128). However, the flirtation with ontological flexibility ended there.

It wasn’t until the 2018 publication of the multi-authored The Right to Have Rights that cracks in the edifice of Arendtian human supremacy would gain full exposure. In particular, Alastair Hunt wasted no time in the final chapter making this case when he noted that “[v]irtually all of Arendt’s readers” take for granted that humans are the only beings entitled to rights (DeGooyer et al., 2018, p. 75). Crucially, he accused students of Arendt of pursuing a narrow interpretation of her work that forecloses the possibility of nonhuman rights bearers and contended that the indeterminacy of the subject in the “right to have rights” leaves open the potential for a range of entities that might find protection in the form of a political community. In short, the puzzling inattention that human rights scholars have paid to the first order question of who can be a subject of rights is owed, at least in part, to a restrictive reading of Arendt practiced by members of the human rights hermeneutic circle.

The issue surrounding who is entitled to rights (of any kind) remains more unsettled than the pages of mainstream human rights literature might suggest. Other fascinating (and one might argue essential) cognate debates have been taking place outside the realm of human rights scholarship as well. These disputes are fundamentally ethical, legal, and political in nature. Questions at the heart of these intellectual quarrels include these: What is the basis for rights and how might we explain divergence in the application of rights-conferring criteria across jurisdictions and entities? Is legal personhood necessary for the attribution of legal rights? How can the interests of nonhumans be identified and represented? Which rights exist and to whom do they apply? Is there space in human rights theory for non-Western perspectives? Do we need to revisit, revise, or perhaps dismantle extant human rights in order to adequately address challenges to the status quo?

These queries are motivated, demanded even, by the very existential threats described earlier. First, we have witnessed the rollback of human rights in states guided by right-wing, authoritarian leaders. In some cases, the courts not only have failed to serve as a viable channel for redressing these grievances, they have been complicit in their arrival (Mecellem, 2018). Second, the continuing onslaught of climate change and environmental degradation has demonstrated the impotence of environmental law and heralded the arrival of the Anthropocene, a new geological era marked by human domination over nature and the dissolution of the ontological boundary separating humans from the environment (Cielemęcka & Daigle, 2019).

A number of alternative approaches to environmental protection have emerged as a result, including concepts like environmental human rights (Hiskes, 2005, 2006, 2016), ecocide (Crook et al., 2018), planetary justice (Biermann & Kalfagianni, 2020), and rights of nature, whose Indigenous cosmological origins were invoked as a deliberate refutation of Western cultural hegemony, colonialism, and capitalism (Kauffman & Martin, 2021).

Finally, advances in artificial intelligence and human enhancement technologies have cast doubt on the ontological exclusivity of heretofore human-like properties thought to undergird the possession of rights and the extent to which an entity might be considered strictly human or machine. As a result, uncomfortable conversations about extending rights to nonhuman, putatively nonliving beings while human rights go unfulfilled and egregiously violated around the world (Birhane & van Dijk, 2020) are occurring at the same time that the notion of what it means to be human (and thus deserving of dignity and rights) is being thoroughly disrupted (Doyle, 2018). Human rights cannot afford to ignore these paradigm-altering developments if its analysts and advocates wish it to remain relevant well into the twenty-first century and beyond.

Tackling the dilemmas presently facing human rights will require hard discussions and harder choices, some of which may seem downright heretical to experts in this area. But as Choi-Fitzpatrick has shown and I have argued, human rights has proven insufficiently reflective about its trajectory and lackluster in its engagement with disparate disciplines that have confronted the rights dimensions of existential hazards head-on. As someone who has spent considerable energy swimming in various intellectual waters, I feel compelled to draw some lines in the sand in the hopes of laying bare what I believe are normatively productive directions for human rights theory. It is my hope that by explicitly articulating these positions, fellow travelers in this space will feel compelled to explain the ethics and logic underlying their stances as well.

First and foremost, human rights should be rhetorically broadened to include the more-than-human world. This might mean using a telescopic phrase like simply “rights” or specifying the range of entities included, as in “human and nonhuman rights” (although I should note that this latter option may reify the very ontological boundaries that some ecocentrists, feminists, posthumanists, and Indigenous scholars seek to overcome). Second, there can be no one-size-fits-all model of rights imposed from the top down. A viable, ethically defensible perspective on legal rights that intends to be maximally inclusive needs to be grounded in pluralism (Anker, 2014). Third, we have a moral obligation to eliminate ontological binaries when determining the subjects of rights. Not only is it an act of epistemic violence to deny the fluidity with which other cultures perceive the scope of entities worthy of protection, but during the Anthropocene it is increasingly empirically and philosophically inaccurate to draw bright lines distinguishing humans from nature and nature from culture. Conceptually, this move requires shifting away from the individualism that has come to define human rights and leaning toward thinking in terms of autopoietic (i.e., expanding and contracting) systems contingently comprising actants, assemblages, hybrids, and so on (Beckers & Teubner, 2021; Hoły-Łuczaj & Blok, 2019).

Finally and most controversially, we must decenter humans from their place of absolute supremacy in the moral universe. The self-appointed level of importance accorded humans has served as a justification for the perpetuation of violent and ruinous behavior conducted at the expense of not only all other creatures on the planet and Earth itself but past, present, and future humans, as well. If our ethics are to match the intent of our rights, humans need to occupy a place among (not above) all other beings and systems, thus making it possible for us to actually lose when interests come into conflict. It should be telling that some of the most vociferous opponents of anti-anthropocentric movements like the rights of nature are far right activists dedicated to preserving Western hegemony (Smith, 2014). Unfortunately, human rights scholars have been unwitting bedfellows of such actors due to their unacknowledged commitment to the same Eurocentric thinking about rights. The time is ripe for shedding such undesirable allegiances and establishing new ones.

Choi-Fitzpatrick concludes his clarion call to update human rights on this inspirational note: “Old ideas are on a precipice, but a host of new realities and possibilities suggest new ideas are needed. The human rights world could do worse than to invest in producing new utopias, emancipatory projects, and novel institutional forms for social movements to pursue through new norms cycles” (Choi-Fitzpatrick, 2023, p. 15).

I have offered some new ideas in this piece, but my central point remains that we, as “rights” scholars, have a duty to radically depart from conventional human rights theory if rights are to remain meaningful. I believe we—all of us taking part in this collective project of worlding—are up to the heady task of creating a more just future.

Acknowledgments

The author would like to thank Shareen Hertel and Cathy Buerger for their helpful comments on an earlier draft of the article.

Declaration of interest statement

The author reports there are no competing interests to declare.

Additional information

Notes on contributors

Joshua C. Gellers

Joshua C. Gellers, PhD, is a professor and director of the MA in International Affairs Program in the Department of Political Science and Public Administration at the University of North Florida. He is also a research fellow of the Earth System Governance Project, expert with the Global AI Ethics Institute, and Fulbright scholar to Sri Lanka. His research focuses on environmental governance, rights, and technology. He has published over two dozen articles or chapters, edited a special issue of Earth System Governance on AI and digitalization, and written two books: The Global Emergence of Constitutional Environmental Rights (Routledge, 2017) and Rights for Robots: Artificial Intelligence, Animal and Environmental Law (Routledge, 2020). Gellers has delivered more than 20 invited talks at universities and law schools in eight countries, and his work has been cited in a dozen UN or EU reports. He holds a BA in political science from the University of Florida, an MA in climate and society from Columbia University, and an MA and PhD in political science from the University of California, Irvine.